However, according to the majority decision by John Roberts, the Supreme Court's conservative chief justice, the mandate cannot be justified on commerce-clause grounds. Indeed, Mr Roberts wholly affirms the argument that the commerce clause cannot regulate economic inactivity. From the syllabus of the decision:

Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress's power to “regulate Commerce.”

This amounts to a sizable, if weird victory for the conservative and libertarian legal theorists who vigorously pushed this line of reasoning. However, according to the majority, the penalty meant to give the mandate teeth does fall under Congress's undisputed power to tax. "[I]t is abundantly clear the Constitution does not guarantee that individuals may avoid taxation through inactivity", Mr Roberts writes. Thus the court manages to defer to Congress whilst explicitly contradicting an expansive reading of Congress's power to regulate economic activity under the commerce clause. And so the needle is threaded.

Had Mr Roberts sided wholly with his conservative brethren on the court, the decision would have been absolutely devastating to liberal ambitions. Obamacare and thelongstandingliberal interpretation of the commerce clause would have been left in shambles. Why didn't Mr Roberts pull the trigger? Because he's conservative. And he's very smart.

The fearful part is that five justices ruled that the Affordable Care Act cannot be upheld under the Commerce Clause. This is a bizarre and implausibly narrow reading — if Congress cannot regulate the health-care market, then it cannot really regulate interstate commerce. By endorsing this precedent, Roberts opens the door for future courts to revive the Constitution in Exile.

But Roberts will do it by a process of slow constriction, carefully building case upon case to produce a result that over time will, if he prevails, rewrite the shape of American law. What he is not willing to do is to impose his vision in one sudden and transparently partisan attack. Roberts is playing a long game.

But it would be unfair to attribute his hesitance solely to strategy. Roberts peered into the abyss of a world in which he and his colleagues are little more than Senators with lifetime appointments, and he recoiled. The long-term war over the shape of the state goes on, but the crisis of legitimacy has been averted. I have rarely felt so relieved.

I would phrase this rather differently. Mr Roberts genuinely thinks continuity, stability, public approval, and a posture of deference to the legislature are crucial to the healthy functioning of the judicial branch. The members of the court have more room to move, more freedom to interpret the constitution by their independent lights, when they are not the subject of an angry, divisive public debate that loudly calls into question the independence and legitimacy of their institution. Mr Roberts observed the livid reaction to Citizens United, as well as the liberal freak-out over the mere possibility of a ruling striking down Obamacare, and determined that prudent custodianship of the court called for a light, conciliatory touch. Indeed, my hunch (and none shall doubt my amazing intuition!) is that Mr Roberts may well have chosen to join his conservative colleagues had the court not lost so much public goodwill following the Citizens United decision.

Mr Chait's thought that Mr Roberts sought to avoid "a world in which he and his colleagues are little more than Senators with lifetime appointments" is more than a little ironic, given that in his decision Mr Roberts rather straightforwardly legislated from the bench by offering and affirming a construction of Obamacare which the administration itself rejected. That is to say, Mr Roberts acted exactly like a senator with a lifetime appointment: he elected to advance his agenda in a manner available only to legislators immune from short-term electoral pressure.

By now I think we all realise that "judicial activism" really means "a decision I don't like" and that "crisis of legitimacy" really means "a series of decisions I don't like". Thus, all that was required to avert a looming "crisis of legitimacy" was to uphold Obamacare, for whatever reason, and Mr Roberts seemed to have known it. Mr Chait and his partisan allies clearly dislike the way in which Mr Roberts avoided the "crisis" of their collective tantrum, but the great relief that has now washed over them will be enough to keep them from attacking with full force the "bizarre and implausibly narrow reading" of the commerce clause which Mr Roberts just embedded more firmly in constitutional law.

I'd learned enough Constitutional Law to understand all the lawyer's shop-talk in the Roberts hearings, and I came away with the sense that he is a genuine Conservative, and not the kind of Right-wing Radical upon whom that venerable word has been absurdly bestowed by Republicans since 1995 [think: What would Burke say?]. And he's the Chief Justice. It's the Roberts Court, and his personal historical reputation is on the line in a way that none of the other justices has to worry about.

Sometimes, people read far too much in to things like this, trying to find a narrative, when a narrative may very well not exist.

I think that Roberts is voting as a judge, not as a politician-- he may very well have disagreed with the law, but found it constitutional, just as I think he found the citizens united laws constitutional regardless of his politics.

The job of the Supreme Court is not to look for approval. It is to protect the people of the United States from abuses of power by making sure that the Constitution is followed. The Foundings Fathers created a document that limits the powers of government. That is the main distinction in making the U.S. the exceptional nation.
That concept was severely eroded last week.

"He (in effect) painted Obama's Solicitor as incompetent for advancing an ineffective, unconstitutional defense of a law that was in itself constitutional."

No he didn't. He repeated his acceptance of the Government's tax power argument throughout his discussion and gave them credit when he found in its favor.

I am concerned that you don't understand how Supreme Court advocacy works. You can have a hundred "Ineffective and unconstitutional" defenses, but so long as you have the one winning one, it doesn't matter how many you lose on. It's called arguing in the alternative, and it's what every Supreme Court litigator (and every litigator period, unless he's got a brain dead simple case) does in every case. Why would you not use as many chances to win as possible?

"He gave the unyielding liberal block a choice between seeing the law go down or preserving it while admitting the rationale offered up for it was unconstitutional. On that, we effectively have a 9 vote concurrence. The commerce clause cannot regulate inaction. (Oooh, that one is going to smart for decades...)"

No. Did you skip 40 pages of the opinion? The four liberal justices had a separate concurrence because they believed the law was valid under the Commerce Clause. So it would be a 5-4 decision on Commerce Clause, not 9-0, and that would be IF the case was decided on Commerce Clause grounds, which it wasn't. The CC stuff is dicta, non-binding, and easily tossed aside by future courts should they wish it so.

"He left it clear that while clearly a politically astute judge, he is not an unyielding ideologue as Thomas, Scalia, and the entire liberal block."

I agree with this.

"(Translation: political capital. The bill will come due soon enough. Eric Holder beware!)"

That's a huge leap to make without any support. As a former prosecutor who has taken the prosecution's side in the past, he'll probably stand on Holder's side. There's strong likelihood that the other conservatives will as well, as they tend to favor immunity defenses.

"And he made fools of the liberal pundits who decried the expected decision as an anti-democratic coup and in the process exposed their desire for a rubber-stamp supreme court to go along with a president ruling by decree."

Please. Such a nebulous assertion could be made of any big case when one side gets nervous about its chances. And exactly zero popular media are suggesting a response like this.

"The biggest winner here is Romney.
He gets Romney care off his back and gets to run against the Obama Healthcare Tax."

No, the biggest winner is Obama. He passed landmark legislation that has been decades in the making and a singular legislative achievement greater than we've seen in decades, and now has put to bed any questions of constitutionality save the medicaid withholding part. Anything other position is obfuscating this point. He's stated before that if he could get health care passed and it cost him a 2 term presidency, he would be content with that. Now he is guaranteed that as his legacy at minimum. Meanwhile, Romney's argument that the case is unconstitutional has been shot to hell, forcing him to rely on policy reasons to object to it. What policy reasons? The individual mandate is the only aspect with widespread unpopularity and that was the central feature of Romneycare. Most people support the portions of ACA that deal with preexisting conditions, increased age for dependents, etc.

"And he gets the right wing of the GOP fuming mad and energized for november."

Have they been anything but for the last 3 years? I'm not sure how many more fists the Tea Party can shake before its arms collectively fall off.

So: "As usual, with Republicans involved, just follow the money to understand their behavior." Well, I am an American first, a Constitutional Conservative second and a Republican a dim, distant third. I've observed the growing financial crises in Europe with both some dismay (since I served overseas and was stationed in West Germany when the wall went up - which clearly illustrated the failure of Socialism), and some amusement of Western Europe's headlong plunge over the same fiscal, "We (the State) will Pay for Everything From (your) Cradle to Grave", cliff as well. I believe it was none other than the "Iron Lady" herself who wryly noted: "The trouble with socialism is that eventually you run out of other people's money." Guess what? She was right, as you're finding out about now.

Once Liberals begin to get their eyesight back from staring into the sun for too long, they will slowly realize, as the election grows closer, that this was a very cryptic ruling by Roberts.
1) SCOTUS actually ruled the mandate, relative to the commerce clause, was unconstitutional. That's how the Democrats got Obama-care going in the first place.
2) SCOTUS reaffirmed Congress doesn't have the ability to mandate, it must, to fund Obama-care, rely on its power to tax.
3) SCOTUS reaffirmed the federal government cannot bully states into complying by yanking their existing medicaid funding.
4) Therefore, a state can decline to participate in Obama-care without penalty.

Suddenly, it's not "National" is it? It will be a matter of time before the collective realization hits; the Left Leaning Main Stream Media has been unable to intellectually get their arms around it yet.

In general, I agree with your frustration. But Supreme Court has limited tools with which to protect the constitution - basically it can only voice its opinion with respect to cases that it sees. The SC can't just randomly issue a majority opinion regarding the Commerce Clause out of the blue (although that would be awesome if it did). More threatening to the Constitution than the ACA were all the "scholars" and lawyers (and legislators, and pundits, and voters) who were 100% convinced that a mandate is constitutional under the Commerce Clause. Roberts went directly after this issue, which was the real one (in my mind).
I actually think this was a very STRONG verdict from the court - a rebuke to the Democrats for lying about the mandate (it is a tax), and a strong defense of the Commerce Clause while he was at it. The fact that he did it with the liberals cheering is just icing on the cake.

"By now I think we all realise that 'judicial activism' really means 'a decision I don't like" and that 'crisis of legitimacy' really means 'a series of decisions I don't like.'"

This is DiA trying to push BS on supposed subtlety and nuanced view of reality. This won't pass. Judicial activism, i.e. stretching interpretation of the law beyond whatever *reasonable* meaning happens and it is a bad thing, regardless of whatever political bias justices might have.

Otherwise we arrive at silly, implicit postmodernism that a text has no meaning at all, even if it is difficult to arrive at such unambiguous meaning.

Government should not be the collector of money on behalf of insurance companies.
Tax breaks and incentives for new insurance approaches and new medical organizations need to be in place.
Privatizing Government, which is what this is about, has been demonstrated in 2007 to be a global catastrophe.
Building incentives and returning America to free markets, free enterprise, American 1950 style tax system and business responsibility for national good, is the way forward.
Republican politicians in Congress produced the part of the law which transfers the public wealth to private insurance companies. The Supreme Court upheld that ludicrous notion and set a precedent for Government to force Americans to pay private individuals and businesses.
Not good. Congress did America a dis-service, the Supreme Court endorsed it because its supports a 1980s, proven horrible, economic model, not today's model.
Americans should receive tax breaks and incentives to fly to India and S. America for health care.
There isn't' a civilized country on the planet that allows its people to die due to lack of health care.

A horrible, terrifying thing Insurance companies and Congress would allow to continue, without this law.

What would that make Congress? A small group of individuals willing to let thousands of American citizens die, unless the rest of America pays private interests?

The Real Reason? Justice Roberts is Socially Retarded (inexperienced/naive).
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Before coming to the Supreme court he had very little experience working in environments that involved team dynamics. All the years hidden away geeking out about law left little time for him to experience and deal with organizational politics and the emotional pressures they exerted (one of the youngest justices)
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Also Roberts is one of the few Justices that actually reads and listens to the media on a regular basis.
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Basically he caved in too peer pressure from the liberal bench and pressure from the media, initially he sided with the conservatives, but over the following six weeks he changed his mind, such indecision is indicative of a man emotionally vulnerable and susceptible to pressure.
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Anyone who thinks he has some long range diabolical plan needs to take off their tin foil hat.

Justice Roberts may have handed the GOP its winning issue -- taxation.

The SCOTUS stands high in American popular thought and the Republicans can claim, in complete honesty, that it has described Obamacare as a Colossal Salary Grab.

It is one thing to run for re-election on providing health care for all (I mean, who can oppose this in principle.) It is quite another to run on an enormous increase in taxation. (Remember -- the enforcement vehicle for Obamacare in the IRS -- one will have to report the status of the "mandate" on the 1040.)

Those who feel they are conservatives can console themselves that Roberts let Congress actually govern the country. They can also console themselves that they can now hit the Democrats for a new tax burden. They no longer have to grapple with the health care question -- now it is about the taxman.

Those who feel they are liberal can console themselves that an epochal piece of liberal legislation will soon protect those without healthcare. But, it is likely that Roberts "tax" opinion, already on its way to becoming a SCOTUS classic, may turn this triumph to ashes in their mouths.

Did that crafty fox, Roberts, write his opinion with just this partisan slant in mind? Did he deliberately give with one hand and take away with the other? Only the Shadow knows for sure!

Regardless, it will be a lot of fun watching the pols on both sides of the aisle try to spin this particular hand-grenade.

1) Actually, no, it didn't. Roberts argued that in his opinion but no other justice joined it. See the discussion in Constitutional Law Prof Blog for an expert analysis of the status of the Commerce Clause after this decision.

John Roberts is a liberal in sheep skin. Under his "conservative" watch, the Supreme court has been responsible for branding Microsoft a monopoly, breaking up Arthur Anderson, rendering the Arizona immigration law completely toothless, and now approving Obama's Unaffordable healthcare for universal sufferage. With "conservatives" like Mr. Roberts, who needs liberals?

"Basically he caved in too peer pressure from the liberal bench and pressure from the media, initially he sided with the conservatives, but over the following six weeks he changed his mind, such indecision is indicative of a man emotionally vulnerable and susceptible to pressure."

Yeah, because there is absolutely no pressure whatsoever coming from the right. Rush Limbaugh's fat buttocks sitting on your shoulders and his giant baby fists drumming on your skull is no big deal, right? After all, it is the left that usually threatens sedition and the use of arms to defend themselves against the tyrannical government, correct?

Whatever ones political bias, Roberts's decision is clearly political and only tangentially related to an interpretation of the Constitution. What a surprise!

Indeed, Roberts realized that most of the Court's decisions were following their conservative political ideology and not the law. Since the US public has finally caught onto this game, the Court's legitamacy was in doubt.

However, I think that financial interests really played the dominate role. Smart Republicans (if any really exist) know that striking down the law would re-open the door to a single-payer public system. One day, when the US comes to it senses, it implement this type of system. However, until then, Mr. Roberts was able to continue to perpetuate the flow of dollars to the medical / pharamacy lobbies. As usual, with Republicans involved, just follow the money to understand their behavior.